Saturday, April 04, 2009


Goodbye Miranda. It was nice knowing you. You tried. But you just weren't up to the task. 
Police officers routinely walked around you. They said they read your rights when they didn't; or before reading your rights they made some implicit threats. It was all done during the pre-interview, when nothing was taped or recorded-and anything goes-
and usually did. 

And along the way, boy did you get some bad press. Just about any two-bit crime Hollywood movie or TV movie of the week usually started with a monster of a criminal being released from prison because some befuddled officer forgot to read you. Those of us who practiced law knew that wasn't the law, but that didn't stop you from being portrayed as some society destroying monster bent on releasing everyone from prison. 

And now, the end is near. Read on McDuff:

In State v. Powell, (clink on the link for the case) the Florida Supreme Court held that full and complete Miranda warnings were needed before a confession was admissible. The court disapproved of a pared down "economic version" of the rights.  

"You're under arrest. You probably will never see your family or the light of day again unless you speak with us. By the way you can have a two-bit piece of crap lawyer here, but all he wants to do is have your family mortgage your home to hire him. You want that? Or do you want a chance to speak with us and save your miserable butt?"

That version, or some reasonable facsimile, was disapproved of by the Florida Supreme Court. 

Quick legal quiz: Which distinguished Justice of the US Supreme Court sits as the designated judge for our Circuit. 


And this past Thursday Justice Thomas put the decision of Powell on hold while the court considers this petition to review Powell, and  by implication, the scope of Miranda. 

And that will be that. Maybe not today, and maybe not tomorrow, but soon, and forever after (thanks to Rick in Casablanca for the rhythm  of that last sentence.)

Miranda barely works now. Any homicide cop can and does wiggle around it. And if the Supreme Court approves a watered down version of Miranda, the last vestiges of the Fifth amendment's protections against self incrimination will go out the door and into the cold night of a criminal justice system ruled by the police. 

And that's the way most people want it......until the police come for them. 

Police officers routinely threaten, berate, trick, scare, and even use physical violence to obtain statements. And judges who are elected and are sensitive to the Hollywood portrayal of Miranda are loathe to risk appearing on the front page of the Herald under this headline "Judge Tosses confession in child murder case!!!!" regardless of the circumstances of the statement. 

Query: In a day and age when the availability to digitally record a police officer's full encounter with a suspect (from arrest, to pre-statement, to confession) is as easy as turning on a cell phone and pressing "record", why do police departments and prosecutors resist guidelines that would call for recording all police interactions with a suspect?

Because of this- in a murder case we defended, our client,  after being brought back to the scene to recount the circumstances of the murder, grabbed the microphone and there was a scuffle. The microphone when then turned off. But we got the recording, and we got it enhanced- and this is what our client said " Client: "I want to make sure your promise not to arrest me is on tape."  Detective: "Turn that damed thing off."

Goodbye Miranda. It was nice knowing you. You tried. 

See you in court. 

Ps. Don't bother looking around for that case. It happened out of state. A courageous Judge granted the motion to suppress.


Anonymous said...

There is too much shortsightedness on the part of the attorney general and his assistants in trying to overturn a venerable precedent that should be left at all.

Anonymous said...

Miami Beach cops never lie. They are the epitome of professionalism.

Publisher said...

You wrote this piece so well.
It is just terrifffffic !!!!
I love the way it talks to you, as if we were at dinner together and a friend was saying good nite...

Anonymous said...

police "routinely" beat up defendants? got any proof that this is the "routine" for police officer, rump? you sure that it isn't the rotten few who occasionally overstep the line? or is this another one of your hysterical the-sky-is-falling-down defense attorney melt-downs.

Anonymous said...

If they get rid of Miranda and the exclusionary rule, I'm gonna become an estate planner. (kidding)

Anonymous said...

Perhaps Miranda gives a subject statement more credibility. Maybe we're better off without it.

Anonymous said...

the abed one could never be a gator or a TEP.

The Professor said...


While I believe Miranda is good policy and that stare decisis will (maybe) be at least some impediment to ScalitoRobertsThomas, where in the text of the Fifth Amendment does it say "All police officers must read the following speech when a suspect is facing custodial interrogation..."? It doesn't. It's a judicially created device that serves, allegedly, as a prophylactic to the right not to self-incriminate.

A closer textual interpretation of the 5Am would hold only that police may not cajole a statement out of a suspect. So, we may be heading back to the pre-Miranda wishy-washiness of "voluntariness." Ironically, that will result in more judicial discretion in throwing out confessions, something I'm sure that the conservative wing of the Court would not want.

Once again, Justice Kenedy will be "the decider." So, perhaps his judicial minimalism will result in a holding that the magic Miranda incantation is not necessary, but some reasonable facsimile of will suffice.

I think you need to be far more worried about the exclusionary rule in general. Scalia says he'd reverse it, and Thomas isn't too far behind. Although both Miranda and the exclusionary rule could be saved by subsequent federal legislation (something I think the conservative justices would prefer), I think the Court has its sights set on both Miranda and Mapp.

But, your argument, which basically focuses on saying that Miranda is good policy, just doesn't cut it in this textualist/ originalist world.

Anonymous said...

A venerable precedent? Not really. It was a 5-4 decision with highly respected justices Harlan and White in the dissent. I have read the constitution many times and no where does it mention these rights. The Warren Court simply invented them to ameliorate what it thought were widespread abuses by local police departments in questioning suspects. It was policy making of the type Plato would have approved. And let us assume for the moment that Miranda is overturned (a highly unlikely event). What will happen? In a word, nothing. There are fifty state constitutions and fifty state legislatures that could re-instate it, where it should have been in the first place. While this blog is not the place to engage in scholarly analysis of supreme court opinions, Miranda, like Brown v. Board of Education, is a horrible opinion. They each first seek to "prove" a social problem (separate but equal does not work or police abuse), and then fashion a constitutional right to fix the problem. The conclusion is that constitutional rights are a product not of the constitution but of the social problems that they can cure. After reading Miranda and Brown, what is left to wonder: if separate schools for black children did not lead to inferior educational results and opportunities, would it still be unconstitutional? Ditto for police abuse. In my opinion, rights exists independent of any societal problems their non existence may cause. With Brown, the court could have simply read the constitution and declared the whole thing illegal without resort to social science and in Miranda, recognized a problem and left it to the legislatures of the fifty states to address.

Rumpole said...

My Dear Good Professor-

The words of Miranda are not written in the 5th Amendment. The decision in Miranda, and the 100's of decisions since then on the subject, and the Powell case in particular, hold that while their is no magical incantation, the words, or similar words serve to put the 5th amendment into effect. So long as the suspect knows that he or she does not have to speak to the police and that he or she can have an attorney present if they speak to the police or to make the decision about speaking with the police, and that if they cannot afford an attorney one will be provided, then the protections of the 5th amendment will be served.

Query prof: How many times have you seen the police call an attorney to the scene of a crime? How many times is the Dade County PD called and asked to send a lawyer to give someone advice?

In 25 years or so, I don't think I've heard of it once. I have private clients who are expecting the police and when they arrive they call me and USUALLY but not always the police allow them to make that call.

My point is that even with these specific words, the cops basically ignore them and work around the 5th amendment EXCEPT IN ONE SPECIAL CASE- DURING A POLICE SHOOTING the officer involved has counsel at the scene within a half hour or so and rarely gives a formal statement until several days later. When it's one of their own, the police know how Miranda works.

Anonymous said...

People, people....what is so difficult about expecting cops to read a correct Miranda to all in custody?

How the hell will we enforce the right to remain silent if we don't have these existing rules?

The Professor said...


As usual, I agree with everything you said. If I were a member of Congress or a state legislature, your arguments would absolutely, positively win my vote in favor of a bill seeking to codify Miranda and even give it stronger teeth.

Unfortunately, however, your arguments are fantastic as a matter of policy but irrelevant as a matter of constitutional interpretation. The issue I'm raising is not whether police unfairly treat many suspects ... they do, and that's not good. The issue also is not whether our society should do something about it ... we should.

The issue I'm raising is that Miranda is a judicial construct. Nine unelected justices decided that it would be just spiffy if they made police read suspects a bunch of words.

Good idea? Absolutely, I'd vote for it in a minute as a voter or legislator. Good constitutional law? No, constitutional amendments should be interpretted based (at least as a starting point) upon the words of their texts, as voted upon by the public who ratified those amendments.

The minute you accept expansive interpretive methodologies which aid your clients, you open the door for judges and justices to interpret constitutional amendments in ways repugnant to your clients' positions.

So, the issue I'm raising is whether Miranda should be statutory, not constitutional. That's going to be the Court's focus at SCOTUS in Powell, and the defense bar better have better arguments than "yeah, but, Miranda is really, really good policy."

Anonymous said...

Anonymous at 9:16 a.m. asks: if separate schools for black children did not lead to inferior educational results and opportunities, would it still be unconstitutional? YES. Separate IS unequal, for ALL children. This was not a results-oriented decision designed to improve the education of black children (did that even happen?). The court found that children are disad-vantaged by illogical segre-gation. The court assumed facilities were "equal," but declared separation violated equal protection. "Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other 'tangible' factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education." 347 U.S. 483